I’m a member of this Task Force and we have just released our legal analysis and report on these election issues.
The other members of the task force are James A. Gardner, Deborah Pearlstein, Shugerman, Ava B. Ayers, Wilfred U. Codrington, John Hardin Young, and our Chair, Jerry Goldfeder.
This Vox story, titled “Silicon Valley megadonors unleash a last-minute, $100 million barrage of ads against Trump,” is intriguing on several fronts — not just for the massive amount invovled.
Our campaign-finance laws were written before the digital age took off, and one question campaigns and scholars face is how much traditional broadcast ads (TV in particular) matter in the digital age. Yet here are some of the masters of the digital universe concluding, after in-depth data analysis, that TV ads remain late in the election still provide the biggest bang for the buck. Also interesting that this SuperPac has tried to stay below the radar screen and that this is, reportedly, the first story on it:
A little-known Democratic super PAC backed by some of Silicon Valley’s biggest donors is quietly unleashing a torrent of television spending in the final weeks of the presidential campaign in a last-minute attempt to oust President Donald Trump, Recode has learned.
The barrage of late money — which includes at least $22 million from Facebook co-founder Dustin Moskovitz — figures among one of the most expensive and aggressive plays yet by tech billionaires, who have spent years studying how to maximize the return they get from each additional dollar they spend on politics. Moskovitz is placing his single biggest public bet yet on the evidence that TV ads that come just before Election Day are the best way to do that.
The super PAC, called Future Forward, has remained under the radar but is spending more than $100 million on television and digital in the final month of the campaign — more than any other group — on behalf of Democratic presidential nominee Joe Biden outside of the Biden campaign itself. And it has been leading a separate, previously unreported $28 million proposed campaign to elect a Democrat to the US Senate from Texas, Recode has learned. . . .
Like other Silicon Valley donors new to politics in the Trump era, Moskovitz has sought to bring the brainy, data-driven approach that he has pioneered in his philanthropy to his political program in 2020. He has tried to calculate the “cost-per-net-Democratic-vote,” combing through academic literature to mathematically determine where each marginal dollar from him can make the biggest difference. Other significant Moskovitz bets this cycle have included millions to the Voter Participation Center, a voter-turnout organization that has been supercharged by tech money over the last two years, and Vote Tripling, a “relational organizing” approach to encourage friends to vote.
But the lead conclusion from Moskovitz’s research has been to invest in late TV ads that come just before Election Day, when the ads are still fresh on the minds of voters.
The sharply divided CA 4 en banc decision also illustrates what a mess trying to apply the Purcell “doctrine” can be. Purcell cautions federal courts against changing the status quo in election cases too close to the election. It’s probably best understood not as a “doctrine,” but an equitable consideration courts ought to take into account, along with other factors, in deciding whether to issue an injunction in election cases arising close to an election.
Part of the complexity comes in determining what constitutes the status quo baseline. In NC, the Board of Elections, through a judicial consent decree, changed the receipt deadline for absentee ballots from three days after the election — the policy in the state’s enacted election code — to nine days after the election. That decree was issued a couple weeks ago, on October 2nd.
To make matters far more simple than they are in the actual case, if a plaintiff came to federal court to challenge the order extending this deadline, should the federal court decline to decide the federal question, because it is too late for the court to change the status quo? To sharpen the point, if the federal court believes the late change to the election code is a major one and, on the merits, unconstitutional, should the federal court nonetheless not disturb the “status quo?”
That raises the question of whether the status quo should be understood to be the policies established in the state’s election code — the position of the dissenters in the CA 4 decision — or the new, Oct. 2nd policy reflected in the consent decree the Board entered into — the position of the majority.
Another, more general way to put this: if state executive officials or state courts make major, late-in-the-day changes to election law, can federal courts decide whether those changes are constitutional? Or does Purcell mean the federal courts have to stand down.
Purcell is easiest to apply when plaintiffs bring a last-minute challenge to a state policy that’s been in place for a long time. When policies are constantly changing late in the day, through the actions of state courts or state executive officials, it becomes much harder to figure out exactly how Purcell should be applied.
And I have greatly simplified the actual facts in the NC case. The situation involves a number of actions of the state courts, as well as the federal district court, with state and federal courts in the last couple weeks issuing temporary restraining order, temporary stays, and taking other actions too convoluted to be worth summarizing here. I simply want to flag the Purcell issue that also split the CA 4.
After having just divided 4-4 on the PA case, which centered on the “independent legislature” constitutional issue, the Court might soon be faced with that issue yet again. The en banc 4th Circuit split yesterday on precisely this issue — along with a number of other important ones.
The NC Election Code permits absentee ballots to be received up to three days after Election Day. Ballots received later than that are not valid votes, under the Code. Following a lawsuit challenging this deadline, the NC Board of Elections entered into a consent decree in which it agreed to extend that deadline; under this decree, the Board agreed to treat ballots as valid votes if they were received up to nine days after Election Day.
That poses the constitutional question that split the 4th Circuit: did the Board violate the federal constitutional question by changing the deadline the legislature had enacted into law. In particular, did the Board violate Art. I and Art. II of the Constitution because those provisions give “the legislature” the power to regulate national elections and the manner of choosing presidential electors.
The “independent legislature” doctrine is now being litigated, or has been litigated, in several cases during this election cycle.
If the NC legislature takes this case to the Court now, by seeking a stay, the Court might decide it’s too late in the day to act on that issue now, in which case the Court might simply decline to change the status quo.
But one way or another, it now seems increasingly likely that the Court is going to end up addressing that issue, with all its implications, one day soon. That might be before the election, if the Court were to issue a stay, or after the election, when the Court would hear a case on the merits. But this issue is not going away.
NYT:
Elliott Broidy, a former top fund-raiser for President Trump, pleaded guilty on Tuesday to conspiring to violate foreign lobbying laws as part of a covert campaign to influence the administration on behalf of Chinese and Malaysian interests.
Mr. Broidy, 63, agreed to forfeit $6.6 million to the federal government and to cooperate with prosecutors on a range of potential investigations related to his fellow conspirators and others.
The charge is a felony that could carry a prison sentence of up to five years, but his cooperation is likely to result in a lesser sentence. His sentencing hearing is scheduled for Feb. 12.
Mr. Broidy’s guilty plea relates to his arrangement with the fugitive Malaysian financier Jho Low, who was not identified by name in court filings or during the hearing on Tuesday.
Mr. Broidy admitted that he had accepted $9 million from Mr. Low, some of which was then paid to an associate, to push the Trump administration for the extradition of a Chinese dissident and to drop a case related to an embezzlement scheme from a Malaysian sovereign wealth fund that the United States has accused Mr. Low of engineering.
He also admitted to meeting with a Chinese government official who was seeking the extradition of the dissident, who was not identified in court, but who is known to be the billionaire Guo Wengui, an outspoken critic of China who has been charged by its government with corruption and is seeking asylum in the United States.
Mr. Broidy did not disclose the foreign lobbying work with the Justice Department under the Foreign Agents Registration Act, but he knew that he should have, he told Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia in a virtual hearing.
This is the second time Mr. Broidy has pleaded guilty to a felony. He pleaded guilty in 2009 to a felony charge, which was later reduced to a misdemeanor, in an unrelated pension fund bribery case.
President Trump’s re-election campaign committee ended September with only $63.1 million in the bank despite canceling some television buys late last month, leaving him badly outmatched financially against Joseph R. Biden Jr., who reported $177.3 million in cash on hand for the final stretch of the campaign.
New filings with the Federal Election Commission showed the extent of Mr. Trump’s cash troubles, which are severe enough that he diverted time from key battleground states and flew to California on Sunday for a fund-raiser with just over two weeks until Election Day. The president ended September with just over half as much money as he had at the beginning of the month.
While Mr. Trump’s campaign and its shared committees with the Republican National Committee have raised $1.5 billion since the start of 2019, the disclosures late Tuesday showed that his main re-election committee — the account that must pay for many of the race’s most important costs, including most television ads — had only a small slice remaining.
All told, Mr. Trump’s campaign and its shared committees with the R.N.C. had $251.4 million entering October, compared with the $432 million that Mr. Biden’s campaign and its joint accounts with the Democratic National Committee had in the bank.
Though young Americans typically vote at lower rates than the electorate does as a whole, the race in Michigan’s Eighth District isn’t the only one where their absence could have an impact. David Wasserman, the House editor at the Cook Political Report, cited Illinois’s 13th Congressional District, where Betsy Dirksen Londrigan, a Democrat, is again challenging Representative Rodney Davis, who narrowly beat her in 2018.
Democrats were hoping a big turnout would increase Ms. Londrigan’s chances in the rematch, especially with the college vote at the campuses of the University of Illinois, Southern Illinois University Edwardsville and Illinois State University. But remote classes have left many students living away from campus, and the Cook Political Report has rated the race as leaning toward Mr. Davis’s re-election.
“The Democratic theory of that race was that all they needed to do was get the turnout up,” Mr. Wasserman said. “But there are a lot of moving parts to this student migration situation.”
Nathan L. Gonzales, editor of the Inside Elections newsletter, said the loss of students at the campuses of Oregon State University and the University of Oregon could be a factor in the race for Oregon’s Fourth Congressional District, home to both schools.
Authorities in Florida and Alaska on Tuesday were investigating threatening emails sent to Democratic voters that claimed to be from the Proud Boys, a far-right group supportive of President Trump, but appeared instead to be a deceptive campaign making use of a vulnerability in the organization’s online network.
The emails, which appeared to target Democrats using data from digital databases known as “voter files,” told recipients the group was “in possession of all your information” and instructed voters to change their party registration and cast their ballots for Trump.
“You will vote for Trump on Election Day or we will come after you,” the emails warned.
Enrique Tarrio, the chairman of the Proud Boys and the Florida state director of Latinos for Trump, denied involvement, saying the group operates two sites, and was increasingly migrating away from the domain used in the email campaign….
The domain, officialproudboys.com, was recently dropped by a hosting company that uses Google Cloud services, according to Google Cloud spokesman Ted Ladd. The hosting service cancelled the registration after Google Cloud notified the customer that a non-profit group had raised concerns about the Proud Boys, Ladd said.
Following the action from the hosting service, the domain appears to have been left unsecured, allowing anyone on the Internet to take control of it and use it to send out the menacing messages, said Trevor Davis, CEO of Counteraction, a Washington-based digital intelligence firm.
The lapse, which began on Oct. 8, “likely made them vulnerable to this kind of hijacking,” Davis said. “Bad actors are constantly scanning the Internet for opportunities. Given the public profile of the Proud Boys and the likelihood that whoever’s sending these emails has access to a voter file, this appears to be opportunism.”
WaPo:
A poll worker in Memphis was fired last week after interfering with early voters who wore T-shirts and masks with slogans supporting Black Lives Matter, according to a Shelby County election official.
Details about the incident remained unclear Tuesday, including how many people were affected. Earlier reports indicated voters had been turned away at the Dave Wells Community Center in north Memphis last week, but no county election board officials were on hand to verify whether the prospective voters ended up casting their ballots, Shelby County Election Commission spokeswoman Suzanne Thompson told The Washington Post on Tuesday.
“Our voters are not going to be intimidated. We’re doing everything we can so that every voter in Shelby County can exercise their right,” Thompson said.
The poll worker “of his own volition” was seen telling people late last week that they had to turn their T-shirt or mask inside out if it said “Black Lives Matter,” according to Thompson. A separate poll worker who worked the check-in table and was believed to be friends with the fired poll worker did not show up for work the next day, Thompson said….
When county officials reminded the poll worker, who has not been identified, of the training that all poll workers undergo — and which this year specifically addressed that racial justice slogans are permitted at the polls — he pushed back, Thompson said. She described the poll worker as expressing his belief that Black Lives Matter and the slogan “I Can’t Breathe” were “political statements connected to the Democratic Party.”
AP:
North Carolina can accept absentee ballots that are postmarked by Election Day for more than a week afterward, a federal appeals court ruled Tuesday.
The 4th Circuit Court of Appeals declined to block an extension for accepting the ballots that was announced in late September. The State Board of Elections decided then that absentee ballots could be accepted until Nov. 12 as long as they were mailed by Election Day, lengthening the timeframe from three to nine days. The change was made as part of a legal settlement with voting rights advocates….
The court’s majority opinion notes that ballots must still be postmarked by Election Day to be counted. The opinion says that “everyone must submit their ballot by the same date. The extension merely allows more lawfully cast ballots to be counted, in the event there are any delays precipitated by an avalanche of mail-in ballots.”
The ruling was decided 12-3. All 15 of the court’s active judges participated, rather than a smaller panel, in a sign of the case’s importance.
You can find the opinions here. Mark Stern comments on the dissent starting here:
Joan Biskupic for CNN.
You can watch here.
Charles Stewart for WBUR:
These are the types of scenarios that have convinced many people that Biden has no chance of winning, regardless of what happens with the voting.
However, there are two fundamental flaws beneath all this breathless scenario-building. The first is the idea that general, unsubstantiated charges of fraud would carry any weight in a court once counting got underway. The second is the idea that state election officials and courts would cooperate with a rope-a-dope strategy of vote counting, knowing what is at stake.
You can listen here.
President Donald Trump on Tuesday called on Attorney General William Barr to immediately launch an investigation of Democrat Joe Biden and his son Hunter, effectively demanding that the Justice Department muddy his political opponent and abandon its historic resistance to getting involved in elections.
With just two weeks to go before Election Day, Trump for the first time explicitly called on Barr to investigate the Bidens and even pointed to the nearing Nov. 3 election as reason that Barr should not delay taking action.
“We’ve got to get the attorney general to act,” Trump said in an interview on “Fox & Friends.” “He’s got to act, and he’s got to act fast. He’s got to appoint somebody. This is major corruption, and this has to be known about before the election.”
Julian Zelizer, a presidential historian at Princeton University, suggested that Trump’s pressure campaign on Barr has moved into uncharted territory for presidential politics.
“The question is, Does Barr erode the guidelines and reforms from the post-Watergate era and move forward with this?” Zelizer said. “We are seeing a total politicization of the justice system in the final stages of an election.”
Oped in the Wisconsin State Journal.
WaPo:
Florida Gov. Ron DeSantis’s administration delivered last-minute guidance to local election officials recommending measures that voting-rights advocates say could intimidate or confuse voters, the latest salvo in a pitched battle over who is able to cast ballots in a state crucial to President Trump’s reelection.
In a notice sent to local election officials last week, Division of Elections Director Maria Matthews urged them to remove from the voter rolls people with felony convictions who still owe court fines and fees, a move that local officials said is impossible to accomplish before Election Day.
A second memo from Secretary of State Laurel M. Lee’s general counsel recommended that election staff or law enforcement guard all mail ballot drop boxes, a step that local election officials say is not required under the law.
Election officials said they do not have time or resources to implement either measure before the Nov. 3 election, and voting rights advocates cast the back-to-back missives as the latest effort by the Republican governor and Trump ally to impede access to the ballot box.
“They’re attempting to sow confusion,” Patricia Brigham, president of the League of Women Voters Florida said of the state’s instructions. She added: “The state of Florida doesn’t have a spotless record when it come to making sure voters have easy access to the polls.”
That’s the title CNN put on my piece on the Supreme Court’s decision in the PA case. I’ll keep the excerpt short, since most readers here will already understand much of the background:
In the most important pre-election case this year, Chief Justice John Roberts once again appears to have decided that, for the Supreme Court, discretion is the better part of valor.After sitting for a remarkable several weeks on a Pennsylvania election-law case — the longest the Court has taken with any election case this year — the Court in the end chose to say nothing at all. Instead, it simply released a 4-4 order rejecting the Republican Party’s effort to overturn a decision of the Pennsylvania Supreme Court, a decision that permits absentee ballots to be counted even if received three days after Election Day. . . .
In a 5-4 decision that Justice Ruth Bader Ginsburg wrote five years ago, the Court held that “legislature” means the general lawmaking process of a state. That meant a state can give voters the power to regulate national elections. But who wrote the impassioned, vehement, lengthy dissent for four Justices, arguing that “legislature” means just the institution? Roberts.
That is why he almost certainly believes, as a matter of first principle, that “legislature” means the institution, nothing more. And that belief would have led him to a 5-3 decision blocking the Pennsylvania Supreme Court decision and re-imposing the legislature’s election night deadline for absentee ballots.
But a 5-3 decision doing that would have led Biden supporters to believe the conservative majority was aligning with the Republican Party, for partisan reasons, in favor of restrictive absentee ballot rules — in a critical swing state like Pennsylvania. On top of that, the Court might well have felt obligated to explain its reasons for such a significant action. That would have required the Court to resolve the meaning of “legislature,” with all the implications doing so would entail.In suppressing his almost certain view about the proper meaning of the Constitution, Roberts chose to let these issues, like sleeping dogs, lie — at least for now. A 4-4 decision says nothing. It settles nothing. Surely a tough vote for the Chief Justice, but exactly the right call, on the eve of an election that is roiling the country like few others.
Jeff Zalesin at Yale Law Journal Forum. Abstract:
The Constitution requires legislative redistricting plans to have approximately equal populations in each district. But no one knows exactly how many people live in any district, because census data are never fully accurate. Courts have developed little doctrine in response to this problem. Yet, the need for such doctrine is growing. Policymakers have largely given up on improving the census through statistical adjustment. The 2020 Census will likely be less accurate than its predecessors, thanks to political interference and the COVID-19 pandemic.
This Essay offers a pragmatic approach to litigating malapportionment cases with imperfect population data. Courts in malapportionment litigation should clarify that they will consider evidence that the data underlying a redistricting plan are biased, such that the district populations are less equal than they appear. Such evidence will be especially important when courts evaluate maps drawn with novel types of data, such as estimates of citizen voting-age population.
Frontline dives into the Heritage Foundation Database:
eila and Gary Blake didn’t want to miss elk hunting season.
It was 2000, and the election conflicted with their plans, so the Wyoming couple requested absentee ballots.
But the Blakes had moved from 372 Curtis Street five miles down the road to 1372 Curtis Street, crossing a town line. When they mailed their votes using the old address, they were criminally charged. The misdemeanor case was settled with $700 in fines and a few months’ probation, but two decades later, the Blakes are still listed as absentee ballot fraudsters in the Heritage Foundation’s Election Fraud Database.
Far from being proof of organized, large-scale vote-by-mail fraud, the Heritage database presents misleading and incomplete information that overstates the number of alleged fraud instances and includes cases where no crime was committed, an investigation by USA TODAY, Columbia Journalism Investigations and the PBS series FRONTLINE found.
EDITOR’S NOTE: This story is part of an ongoing investigation by FRONTLINE, Columbia Journalism Investigations and USA TODAY Network reporters that examines allegations of voter disenfranchisement and how the pandemic could impact turnout. It includes the film Whose Vote Counts, premiering on PBS and online Oct. 20 at 10 p.m. EST/9 p.m. CST.
AJ Vicens for Mother Jones:
Perhaps nowhere worries experts more than Pennsylvania. As a perennial presidential battleground, its 20 electoral college votes—decided by just 44,292 votes in 2016—always attract the spotlight. But this year, the state is grappling with a number of unprecedented conditions and challenges that could complicate the smooth administration of November’s election, including a recent overhaul of state election law predating the pandemic, continuing fights over changes to voting prompted by the coronavirus, and a growing sense that President Donald Trump’s campaign and supporters will ignore democratic norms to ensure victory in a state that he must win. It’s a brew that in a close election could send the state in the direction of high stakes, drawn out, and hard fought post-election challenges that could determine the fate of the nation.
“If the election comes down to electoral college votes in Pennsylvania, I think it’s going to be hell,” says Rick Hasen, a [UC Irvine] law professor and expert on election administration and voting rights. “That’s one of the worst possible outcomes.”
For Hasen, the state’s inexperience with mail ballots is a key concern. In 2019, Pennsylvania’s Republican controlled legislature passed a bill with largely bipartisan support that allowed voters, as part of a growing national trend, to cast ballots by mail under any circumstance. This fall’s general election would have been the first conducted under the new rules, but no one expected a pandemic would push an unforeseeable number of the state’s 8.8 million voters to opt for mail balloting. The flood could swamp little-tested mailing, handling, and processing procedures. Already, issues are flaring up: On October 14, election officials in Allegheny County, home to Pittsburgh, announced that nearly 29,000 ballots went to voters with the wrong contests, a mistake noticed by attentive voters. Officials intervened to prevent another 19,000 faulty ballots from being sent, and have pledged to re-issue correct ballots.
Adding to Hasen’s worries is a state law that bans substantial processing of mail ballots until Election Day. The provision is almost certain to result in a delay between the release of results collected at in-person polling places and those that came by mail ballots, hindering the quick designation of a clear winner. Trump supporters have outlined plans to exploit the delay. Last week, the Associated Press reported that Trump allies think “their best bet” at holding the White House is to “hope results look close on election night, before some of the mail-in ballots are counted, allowing Trump to declare victory and have the results thrown to the courts.”
Here, the strength of the final three factors of the stay analysis outweigh any probability of defendants’ success on the merits. Partly from defendants’ own doing, the electoral calendar works against their request for a stay of the district court’s preliminary injunction. The district court issued its preliminary injunction on September 9, 2020. While that timing may have been out of defendants’ control, defendants did not file their appeal of the preliminary injunction until October 5, 2020, nearly one month after the injunction sprang into effect. And they did not seek a stay of the district court’s order until October 9, 2020. Plaintiffs’ response to the stay motion was filed October 15, 2020.
During the period between September 9, the day of issuance of the preliminary injunction, and October 15, the day plaintiffs’ response was filed, both absentee voting and early in-person voting had begun in Tennessee. Plaintiffs have been working in their communities to inform their members and the general public about the district court’s preliminary injunction; collectively, they have spoken to over 1,500 voters at union meetings, virtual town halls, and voter-registration events. On Tennessee’s official government webpage about absentee voting, the defendants themselves prominently state that “[p]ursuant to the September 9, 2020 Order of the U.S. District Court, first-time voters are not required to vote in-person if they meet a legal reason to vote by-mail.” Absentee Voting, Tenn. Sec’y of State, https://sos.tn.gov/products/elections/absentee-voting (last accessed Oct. 17, 2020).
Given this situation, the injury to potential voters, who have relied on communications from defendants and local election officials, is great. Moreover, disrupting the new rules at this point poses significant risk of harm to the public interest in orderly elections. In this instance, there is no substantial harm to defendants in continuing to comply with rules they are currently following.
This is the same panel that divided sharply in another Tennessee voting emergency case.
The equities in this case and how the very conservative judges voted in the most recent case says something significant about reliance. This is why last night on Twitter I suggested that it seems unlikely the U.S. Supreme Court, after not granting a stay on the acceptance of absentee ballots received up to three days after the election without a postmark in Pennsylvania, would turn around after the election with a Justice Barrett and say that those ballots now could not be counted. The reliance interests are tremendous.
And:
Event today at USC:
The 2020 Presidential Election is unprecedented in many ways: Record numbers of mail-in ballots. Potentially epic post-election legal battles. Voter preferences for in-person voting that fall starkly along party lines. These are just a few of the possible post-election events that the media must be prepared to navigate as it reports on an Election Night that could stretch well past November 3. Join the USC Annenberg Center on Communication Leadership and Policy and the USC Center for the Political Future for a conversation exploring how the media can accurately and fairly cover the results on Election Night and beyond. Our panelists will discuss the role of the press in setting realistic expectations for the American public, preventing the spread of misinformation, and maintaining trust in our democratic institutions. CCLP Director Geoffrey Cowan will facilitate a conversation with the following panelists:
The following is a guest post from Neel U. Sukhatme, Associate Professor, Georgetown University Law Center, and Co-Founder, Free Our Vote:
As readers of this blog might know, nearly 65% of voters in Florida supported a ballot initiative in 2018 to restore voting rights for most former felons in the state. Unfortunately, the state legislature and governor subsequently enacted SB 7066, which removed voting rights for hundreds of thousands of former felons who still owe fines, fees, court costs or restitution associated with their sentencing. Subsequent legal challenges to SB 7066 ultimately failed.
There are many legal and ethical problems stemming from this suppression of voting rights. But a more basic problem is pragmatic: most former felons cannot even find out how much they owe in fines/fees because Florida does not maintain a centralized database that tracks this information.
My colleague, Alexander Billy, and I were troubled by this. So we founded Free Our Vote, a non-partisan, non-profit organization comprised of data scientists, economists, and legal researchers that seeks to restore voting rights for former felons. Leveraging our past experience with Florida data, Free Our Vote has collected accurate fines/fees information for over 425,000 Floridians across 24 counties that comprise over 85% of the state’s population.
The data we’ve gathered has enabled us to launch a multi-media information campaign with our partners, the Campaign Legal Center and Florida Rights Restoration Coalition. Together, we have informed tens of thousands of former felons who owe nothing that they should be able to participate in the November election. Free Our Vote’s data-centered approach has also helped us support the Florida Rights Restoration Coalition in strategically allocating repayment of fines/fees to maximize the number of people whose voting rights are restored.
Separately, Free Our Vote is partnering with Robert F. Kennedy Human Rights, a 501(c)(3) tax-deductible organization, to pay off fines/fees for Floridians with felony records. Though the support of generous donors, we will have repaid more than $50,000 in fines/fees across multiple counties, enabling Free Our Vote to restore voting rights for well over 1,000 former felons. Free Our Vote’s efforts on this front will continue up through Election Day.
Sadly, the shadow of fines/fees will continue to impact thousands more past November 3, limiting their ability to obtain a driver’s license, let alone cast a ballot. Free Our Vote will continue to work on this issue, leveraging the rich data we’ve collected and working with partners such as the Fines and Fees Justice Center to inform policymakers and redress these shortcomings in the criminal justice system.
New Josh Douglas at CNN.
I have written this piece for Slate. It begins:
After a very long delay in an emergency election case, the shorthanded United States Supreme Court came to a 4-4 tie in an election law case out of Pennsylvania on Monday evening. While a tie result that leaves the lower court ruling standing is a clear short-term win for Democrats in making it easier to vote in the Keystone State in November, Republicans could end up with a much bigger victory if there is any post-election Trump v. Biden litigation. If Amy Coney Barrett joins the Court next week as expected, she could be the deciding vote in any case that challenges election or recount rules set out by a Democratic-dominated state Supreme Court in a place like Pennsylvania or North Carolina in opposition to those states’ Republican legislatures….
This 4-4 tie is doubly troubling. First, it means that we have no guidance from the Court as to when and whether a state Supreme Court can rely on a state Constitution when it expands or changes state voting rules in a presidential election. Even though Democrats opposed the stay sought by Republicans in the case, they begged the Court to fully take the case and give an explanation as to the scope of state court power in this case. This lack of guidance could be a huge problem in the two battleground states—North Carolina and Pennsylvania—with Democratic state Supreme Courts and Republican legislatures who could battle over any post-election voting rules.
Further, it shows that President Trump was right about the role that Judge Amy Coney Barrett could play in any post-election litigation over the winner of the November election. He has said he wants Barrett on the Supreme Court to decide such a case. I earlier expressed skepticism that Barrett would act as a tie-breaker in such circumstances, reasoning that Chief Justice Roberts would not want to put her in this position. But I’ve now reconsidered. Judge Barrett is a deeply conservative judge, much like Justices Alito, Gorsuch, Kavanaugh, and Thomas who voted Monday to grant a stay. She easily could have been a fifth vote hear to side with the broad power of state legislatures against state Supreme Courts seeking to protect voting rights under the state constitution.
If you thought the stakes of a Barrett confirmation couldn’t get any higher, they just did.
If President Trump does end up losing reelection, one big area that will be ripe for an autopsy is the role that Fox News played in making that happen.
A mammoth new poll from the Public Religion Research Institute helps underscore another way this may prove to be the case. It finds that Republicans who place great trust in Fox News say in truly overwhelming percentages that they are “not at all” confident that vote-by-mail will be secure against fraud.
This is precisely an outcome that Republican strategists worried about. Last spring, when Trump was pushing false and unsubstantiated claims about fraud in vote-by-mail particularly hard, Republicans loudly voiced their fears this would put them at a disadvantage in key swing states.
Those Republicans noted that Democrats were likely to request absentee ballots in far higher numbers. And they fretted that less committed GOP voters who were dissuaded from voting by mail might not turn out on Election Day, needlessly costing Republicans a way to lock down their votes.
Dahlia Lithwick and I have written this piece for Slate. It begins:
Nobody, aside perhaps from Judge Amy Coney Barrett, could have missed the implication of Sen. Amy Klobuchar’s line of questions Wednesday about Barrett’s service in the army of GOP lawyers who flew down to Florida to make certain that ballots were counted for George W. Bush in the 2000 election dispute that culminated in Bush v. Gore. If Barrett is confirmed, the Supreme Court will have three justices who worked on behalf of the GOP on the 2000 litigation that resulted in George W. Bush winning that year’s presidential election. Barrett, who testified that she couldn’t recall anymore what work she did for the campaign, joins Chief Justice John Roberts and Justice Brett Kavanaugh as three of the luckiest election lawyers in history, a fact Barrett dismissed in her testimony as an unremarkable coincidence.
It’s not just that court will now feature three former Bush v. Gore lawyers—it’s that it will feature three former *Bush* lawyers. But this isn’t just a story about how the Federalist Society rewards its own loyalists. It’s also an urgent story about a side project of Federalist Society leaders and allies working to assist an effort at voter suppression, while simultaneously working both to manipulate voting rules and stack the judiciary to push a Trump victory and solidify Republican control of government….
This is where it all ties together: the lawyers who are popping up around the country demanding, under the false flag of “vote fraud,” that voter rolls be purged and voting in a pandemic become more deadly, are coordinated by the same people, and with the same unknown funding that has put more than 200 conservatives judges into lifetime positions on the federal courts. As we concluded in May, all this is a far cry from the “debate club” the Federalist Society has long claimed to be (and still claimed to be at the Barrett hearings)…
There’s one more way in which the ghost of Bush v Gore, the long shadow of the Brooks Brothers revolt, and the specter of outright vote suppression loom large over the upcoming election and whatever litigation may follow. The unsigned 5–4 decision in Bush v. Gore was widely understood to be a “good for one ride only” holding that would have no precedential force in any future case. (The Supreme Court itself has never cited the case in the intervening decades except in a concurring opinion by Justice Clarence Thomas on a tangential point.)
But the cherry on top is that it’s now being dusted off by Trump’s legal team for a reprise in the 2020 election. As Joan Biskupic has explained, Trump’s legal teams have begun to cite the equal protection rationale that supported Bush v. Gore in legal challenges around the country, somehow claiming that the case, which was supposed to have no value, now invalidates state procedures for balloting by mail, because they lack in uniformity in violation of constitutional equal protection. Justice Antonin Scalia signed onto that equal protection decision holding his nose, reportedly calling it, “as we say in Brooklyn, a piece of shit.”
Voters whose absentee ballots have problems with their envelopes can now expect contact from board of elections offices in order to fix their ballots by Election Day.
And less than 24 hours after North Carolina added new guidelines on handling those problems, the N.C. Court of Appeals ruled that ballots could be collected through Nov. 12 if they were postmarked by 5 p.m. Nov. 3, Election Day.
Ten thousand ballots had problems but were caught in the crossfire of three lawsuits pending in both state and federal court and voters could not be contacted until the conclusion of those lawsuits that are now before the N.C. Court of Appeals.
But on Sunday, the N.C. State Board of Elections issued the new guidance to county boards that allowed for voters to be contacted in order to fix their ballots before Election Day.
Senate Leader Phil Berger’s office provided The News & Observer a letter written by Ryan Park, solicitor general for the N.C. Attorney General’s office, to the N.C. Court of Appeals. Park wrote in the letter that Berger and House Speaker Tim Moore agreed that new guidance can be given to the county boards that they may now contact voters who need to fix their ballots.
This is terrible and these boxes are designed to make this difficult to do.
People interfering with ballots like this can face felony charges.
New Ned Foley at WaPo.
I reached similar conclusions on the need for a constitutional amendment in my Three Pathologies piece.
You can find the opinion by Judge Smith (along with a concurrence by Judge Higgenbotham at this link.
This case is a nice illustration of the dangers of bringing these suits seeking federal court orders easing voting during a pandemic. Not only do such suits face a greater chance of reversal as they work their way up the increasingly conservative appellate food chain. They run the risk of getting really bad voting rights precedent on the books. In this case, the opinion by Judge Jerry Smith will have very bad implications across a host of voting rights cases (and not just on this particular issue). The discussion of voter fraud is especially troublesome.
Update: Sam Levine points out that the case was filed in 2019, so it doesn’t fit directly into pandemic litigation. Still, the general point stands.
I have written this piece for CNN. It begins:
What will the United States and the world wake up to on November 4, 2020, the day after Election Day? And could the US endure a close election in which Joe Biden is declared the winner but President Donald J. Trump refuses to concede?
Given current polling of the presidential race, it is possible to imagine three scenarios, either on November 4 or on days soon thereafter: a narrow Trump victory in the Electoral College, with a huge loss in the popular vote; a Biden landslide in which Trump claims he lost because of a “rigged” election; or a very close and potentially flawed election going into overtime that could lead to a prolonged struggle over the presidency and the country. Each of these presents its own set of challenges for American democracy….
If Trump loses by up to 5 million votes in the popular vote, as he could well do, and he remains in office thanks to an Electoral College victory after a divisive first term, it would vindicate his strategy of catering to a fervent white, rural and older base of voters while spurning a more multi-cultural and eclectic American majority. The American left would view such a narrow victory as the product of political manipulation, especially after Republicans over the last two decades played hardball on gerrymandering and restrictive voting laws. But if history is any indication Democrats are unlikely to do more than loudly complain unless there is evidence that Trump engaged in actual electoral tampering to ensure his victory.
A Biden landslide in both the popular vote and the electoral college, which seems plausible given current polling, would raise its own set of challenges. It is hard to imagine Trump accepting a loss with grace and giving a magnanimous concession speech wishing Biden and the country well. The best-case scenario under this potential outcome is that Trump grumbles on his way out, ready to rebuild his business empire and perhaps start Trump TV while a number of lawsuits and investigations play out.
Should Trump decide not to go quietly following a Biden landslide, there’s good reason to believe that American institutions as well as Republican election leaders would accept his defeat and refuse to allow him to make an authoritarian power play. Trump has tested American norms since his candidacy in 2016, and has on multiple occasions refused to commit to a peaceful transition of power….
But what if it is close? This is the scenario that keeps me up at night. The race could come down to Pennsylvania or Michigan, two battleground states with a history of poor election administration in big cities including Philadelphia and Detroit.
If the race is close, Trump and his campaign could file lawsuits and use evidence of election administrator incompetence to convince key segments of the American right that Democrats stole the election through deliberate fraud. Trump has already sowed distrust in the results by saying without evidence that the only way he loses is if the election is “rigged.”
I am most worried about a race that is too close to call — especially in states struggling to count a torrent of mail-in ballots, such as Pennsylvania, whose legislators so far have refused to give election officials a head start as they do in other states like Florida to process absentee votes.
Early voting turnout continues to shatter records, as sky-high voter enthusiasm meets the realities of the United States’ creaky machinery of democracy amid a pandemic. That means long lines in some places and administrative errors with some mail ballots, but a system that is working overall, according to experts.
“Despite some of those concerns, things are going at this point reasonably well,” said former Deputy Postmaster General Ronald Stroman, speaking specifically about the expansion of voting by mail.
More than 26 million people had voted as of Saturday, according to the U.S. Elections Project, a turnout-tracking database run by University of Florida political scientist Michael McDonald. That’s more than six times the number of votes cast by the same point in 2016.
While there are still more than two weeks to go before Election Day, here are some takeaways from the votes that have already been cast.
CNN:
Democratic sources say that they are taking the President at his word. The Biden campaign is preparing for any number of legal contingencies that could arise if the vote is close, while lawmakers are preparing for plausible — and also quite implausible — scenarios that could arise if the presidential election were kicked to Congress to decide a winner. Democrats are also readying a response to Trump’s claims of fraud — which could cause his voters to doubt the legitimacy of the result, even if it’s a Biden landslide — with plans underway for nationwide protests should Trump try to dispute the result. They’re also working with social media companies to try to discourage a premature declaration of victory on election night.
Senate Minority Leader Chuck Schumer and Senate Democrats released a report on Sunday titled, “Counting Votes & What to Expect on Election Day,” aimed at preemptively pushing back on Trump’s claims of fraud, which details how not all states are likely to finish counting their votes on November 3.”
Despite the President’s false claims, according to the leading election experts in our country, voter fraud is nearly nonexistent,” the report says. “In some states, we may not know the winner on Election Night. That’s OK.”
